New Zealand family law advances could benefit Australians
New Zealand family law advances could benefit
An ex senior lawyer says New Zealand Family Court practises could provide the template to bring more justice to the Australian Family Court for families.
Labor, One Nation’s Pauline Hanson and the Law Council of Australia have all welcomed the Australians government’s decision to review the family law system for the first time since the 1970s, announced last week.
In particular the attorney general, George Brandis, has asked the Australian Law Reform Commission to consider if the family law system still prioritises the best interests of children, best addresses family violence and child abuse, and helps families resolve their family law disputes quickly and safely while minimising the financial burden. (7)
Vinay Deobhakta of McKenzie Friend Professionals suggests these are the same issues that have presented in New Zealand. The concept helps self litigants in the family court, unable to afford lawyers, resolve custody issues in a more timely and cost effective manner and is especially beneficial in helping domestic violence survivors.
The original term 'McKenzie friend' came from a UK divorce case in 1970. The parties were West-Indian. The husband, Levine McKenzie, was no longer able to afford his legal team and so they graciously offered him a young Australian barrister (Ian Hanger) to assist. Hangar had just started working with them but was not qualified. The judge would not allow Hangar to assist, except in adjournments and they lost the case. On appeal however they won and set in stone that anyone is allowed assistance during court proceedings and those assisting do not have to be qualified lawyers.(1)
“Ironically although an Australian was the first official McKenzie Friend, to date the New Zealand judiciary appears to be more accepting of the McKenzie friend concept, especially professionally trained McKenzie Friends” says Deobhakta.
In the Crafar Farms receivership in 2010, the largest receivership in Australia to date, Deobhakta was officially appointed as the Crafar family’s McKenzie Friend by the New Zealand high court. Since this time, several clients have also expressed gratitude to him that judges have been appreciative of his services in the court room.
To ensure high professional standards are met Deobhakta will be seeking feedback from the judiciary on trainees going forward as well.
Since legal aid changes in 2009 many court users are no longer eligible to access legal aid but too poor to afford a lawyer. (2)
“In addition to the financial pressure on separated couples to access justice around custody, court users often have difficulty in our court system because they are trying to resolve custody issues legally on the back of divorce which is highly emotional. The court is experiencing delays, in part, because of self litigants who court officials have to educate about the practises and protocols of the court. Our remit is to educate self litigants on these issues in our training programme to remove this burden from the court” says Deobhakta.
Domestic violence victims especially are on the back foot in our system because they have been emotionally traumatised by their experience and then have to try and disconnect from it to present their case in court well.
New Zealand has the worst rate of family and intimate-partner violence in the world. Police attend an incident every five and a half minutes and children are present at eighty percent of them. That figure underestimates the issue though as eighty percent of incidents go unreported. Forty one percent of a police officers time is spent addressing domestic violence.(3)
Last year over 60,000 applications were filed
in the family court and of those, six thousand eight hundred
children were impacted under the Domestic Violence
Deobhakta has a large client base of domestic violence survivors who he encourages to seek the help of alternative disciplines. “Our family court system currently doesn't provide wrap around services for these people. Instead judges are trying to navigate a minefield of emotions presented by litigants. My goal is to ensure domestic violence survivors learn how to present their cases in a professional and effective manner" says Deobhakta.
Deobhakta, whose father was an Auckland district court judge for 33 years, is supportive of the law reforms of recent years and the brief established over fifteen years ago to reduce legal intervention in family issues.
From 2014 plans have been underway to diminish the involvement of lawyers in the family court system. Lawyers were removed from the compulsory family disputes resolution process in 2016 in an attempt to resolve custody issues in a more amicable versus adversarial manner. The only way to circumvent legal involvement is if a without notice application is filed, demanding urgent custody orders be made. Prior to the reforms 50% of applications made were 'without notice' however following the legal reforms, and lawyers being removed from the FDR process, this rose by 36%. In February 2016 86% of applications were made without notice. (7)
The family court is one of the biggest users of legal aid. In 2003 NZ's legal aid bill was $100 million. In 2005 legal reforms allowed more people to access legal aid until Justice Minister Simon Powers demanded an enquiry into the legal aid blowout in 2009. Dame Margaret Bazley, an experienced public servant was commissioned to undertake this. In November 2016 her report detailed that some lawyers were ill-prepared for cases and were "gaming" the system by delaying pleas in order to maximise legal aid payments and demanding top up payments to legal aid from clients. Dame Bazley claimed that every court in the country was affected, but said Manukau District Court was the worst with up to 80 per cent of lawyers 'gaming the system'. She recommended the only course of action to fix the system was to shut the Legal Services Agency down and shift its functions to the Ministry of Justice. (8)
Deobhakta no longer works as a lawyer due to the NZ Lawyers and Conveyancers Disciplinary Tribunal ordering he be struck off the role of Barristers and Solicitors in 2009 immediately following a complaint. This practise is not always followed as happened recently when Timothy Upton Slack was allowed to continue practising until his sentencing.
According to the NZ Law Society, Deobhakta was found guilty of misconduct when he acted for a client who was being pursued by the Inland Revenue Department for unpaid tax. He says he strongly disagrees with the decision to strike him off but he decided not to seek reinstatement.
“The Law Society gave me the greatest gift. When you no longer have an income it is almost impossible to defend any accusations made against you and that gave me an empathy for many of my clients who are also denied justice. My own case took three and a half years just to get to a hearing and then was further delayed until an appeal was heard. During the whole time I had no income and then it was demanded I pay the bill”.
Deobhakta’s goal is to ensure that a level playing field is delivered for all through education, via his McKenzie Friend Training workshops.
Anne, a family court client of Deobhakta’s
and domestic violence survivor is especially gracious of his
work. “After forty years of fists and machette’s and a
decade of involvement from lawyers, Deobhakta has turned my
case around. He has taught me how to learn the law, the
procedures and processes of the court and it is the first
time in four decades I have felt empowered and no longer a
victim” she says.